Criminal defense attorneys get this question all the time from successful adults and students looking to get into restricted fields like nursing. They are trying to find a way to erase that foolish mistake they made years ago. Here is a quick checklist for whether you qualify to have your conviction set aside.
1. Has it been 5 years?
Michigan law requires you to wait 5 years from your date of conviction or your release from jail or prison before you file your petition to set aside conviction. If you jump the gun and file early your petition will be denied and you will lose money. Be patient.
2. Do you have only one conviction?
This is based on the charges filed, not the number of times you went to court. Many people forget that they pleaded guilty to two counts of an offense. Except as described below, if you have more than one conviction, even from the same incident, your petition will be denied. It also doesn’t matter where the conviction occurred. Even if your second offense happened in another state it will interfere with your motion to set aside conviction.
3. If you have more than one conviction, do they count as “minor offenses”?
In 2011, the law changed to carve out an exception for low severity youthful mistakes. The statute now allows you to ignore 2 misdemeanors or ordinances with maximum penalties of 30 days in jail and/or $1,000 fine, if those convictions happened when you were 21 years old or younger. If you have misdemeanor convictions from that age range, talk to a criminal defense lawyer to see if they qualify as “minor offenses.”
4. Is your conviction not excluded by law?
Michigan law will not allow certain convictions to be set aside. Specifically, you cannot apply for a conviction to be set aside if it is:
- any traffic offense
- a felony with a maximum penalty of life imprisonment;
- an attempt at a felony with a maximum penalty of life imprisonment;
- possession, distribution, or creation of child pornography;
- child abuse in front of another child;
- criminal sexual conduct, except for 4th Degree; or
- criminal sexual assault.
If you answered yes to each of the above questions, you may qualify to have your conviction set aside. You will have to provide finger prints and have a background check before you appear in court for a hearing. There the prosecutor or the victim may object to your request and the final decision is up to the judge. If you are considering filing a motion to set aside conviction, contact criminal defense attorney Lisa J. Schmidt to schedule a free, no obligation consultation.